Attorney Makes New Case Law to Protect Privacy of the Families of the Dead

Newport Beach, CAThe Catsouras family was very distraught when they came to see attorney Keith Bremer in November 2006. Their 18-year-old daughter Nicole "Nikki" had recently been killed in a horrible traffic accident that happened on October 31—Halloween Day. She had been decapitated, and extremely graphic pictures of their daughter had gone viral on the Internet. Had their right to privacy been violated?

Nicole "Nikki" Catsouras lost control of her father's Porsche on a California highway. She had never driven the car before and was travelling at an excessive speed. She sideswiped another vehicle, and the high performance vehicle went hurdling across a median, then smashed into an unmanned toll booth and came to stop. Nikki Catsouras was dead.

No one else was injured in the accident.

When California Highway Patrol (CHP) arrived on the scene, they cordoned off the area and began taking routine traffic investigation pictures of the accident. Back at the office, the patrolmen e-mailed pictures of the shocking scene to other patrolmen who then e-mailed them on to others. Within days, enter the name Catsouras into a search engine and anyone could see the grisly photos of Nikki Catsouras's corpse.

"By the time we got involved in November 2006, it was pretty much out of control," says Bremer.

To make things even worse, some anonymous senders had e-mailed official traffic investigation photos directly to members of the Catsouras family, accompanied by hateful messages.

Bremer's firm, Bremer, Whyte, Brown & O’Meara, went to work immediately, asking major portals like Google, Facebook and MySpace to take down the pictures. "We were having a tremendous amount of success in doing that with some bigger portals—but not with some of the smaller portals. They said you simply don't own the rights," he says.

Everything told Keith Bremer's gut that the Catsouras family's privacy had been violated. The law, however, seemed to have a different view. "I did some research," says Bremer, "and realized there was no case law preventing the CHP from doing what it did."

"My clients likely had no cause of action because her right to privacy terminated when their daughter died. All that being said, I said I didn't care. We would try to sue the CHP on the basis of negligence and manoeuvre around governmental immunity. We would try to create some new case law."

The suit was thrown out. The court said the Catsouras's had no grounds to sue.

Undeterred, Bremer appealed to the Superior Court of Orange County in California. The opinion of that court was remarkably different. It found, indeed, that the Catsouras family had a cause of action. The court wrote, "We conclude that the CHP and its officers owed a duty of care not to place the decedent's death images on the Internet for purposes of a vulgar spectacle."

The law in California already stated that no images made by the coroner's office can be copied and distributed. The Superior Court found that "it was no great leap" to extend those rights of privacy to the family of the deceased.

If the photographs had been taken by the media from a vantage point outside the cordoned-off area that would have been a different case. But these were traffic investigation photos—distributed to the public.

The case was scheduled to go trial in March 2012. However, the CHP agreed to pay the family of Nicole "Nikki" Catsouras $2.375 million in a pretrial settlement.

"An important point has been made," says Bremer. "We got a good decision."

Unfortunately, the pictures still exist on the Internet. "They are still out there. We are trying to eliminate them and we are having some success."